Note: Decisions of a three-justice panel are
not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME
COURT DOCKET NO. 2005-325

FEBRUARY
TERM, 2006

In re A.R., A.R., and A.A., Juveniles } APPEALED
FROM:

}

} Franklin
Family Court

}

} DOCKET NOS.
216/217/218-12-03 Frjv

Trial Judge: James R.
Crucitti

In
the above-entitled cause, the Clerk will enter:

Maternal aunt, Tina
Raymond, appeals from the family court=s order terminating her guardianship over A.R.,
A.R., and A.A. She argues that the family court erred in concluding that she,
as guardian, lacked the authority to determine where the children should be
placed. We affirm.

A.R., A.R., and A.A. are
the children of mother Allison Allen and fathers John Smith and Ricky Revis.*
Parents have criminal and violent histories. In May 2003, a North Carolina
court issued an order granting Tina Raymond, a Vermont resident, legal and
physical custody of the children and appointing her as their guardian. The
court also concluded that it was in the children=s best interest that any visitation
between mother and children be supervised and that none of the children live in
mother=s home. After issuing
its order, the North Carolina court relinquished jurisdiction of the matter.

In May 2003, the
children moved to Vermont to live with Raymond. In December 2003, the
Department for Children and Families (DCF) filed a petition alleging that the
children were in need of care and supervision (CHINS) because they were
actually living with mother in Sheldon, Vermont. The family court transferred
legal custody of the children to DCF pursuant to a temporary detention order.
In March 2004, the children were adjudicated CHINS under 33 V.S.A. ' 5502(a)(12)(B) based on
Raymond=s admission that she
permitted the children to have unsupervised contact with mother. The children
were continued in DCF custody. Two of the children were placed with Angela
Heath, Raymond=s sister, and A.A. was
placed in a foster home. In June 2004, DCF filed a disposition report
recommending termination of parents= residual rights (TPR) and shortly thereafter,
DCF filed a TPR petition.

A disposition hearing
was held in September 2004. Raymond did not attend the hearing but she
indicated through counsel that, although she was not mentioned in the TPR
petition, she would relinquish any legal rights that she had to the children.
In December 2004, Raymond, through her attorney, requested a forensic
evaluation to determine if the Heath household was appropriate and if it would
be in the children=s best interests to be
living together. The court approved Raymond=s request in January 2005. In April 2005, the
State moved to dismiss Raymond as a party to the disposition/TPR proceeding.
Raymond objected. The family court determined that the North Carolina order
appointing Raymond as guardian was akin to a permanent guardianship under 14
V.S.A. ' 2664, and Raymond was
entitled to a hearing in the nature of a modification or termination hearing
pursuant to 14 V.S.A. ' 2666.

The court held three
days of hearings and issued a written order in July 2005 terminating Raymond=s guardianship. The
court made the following findings. Raymond had difficulty caring for the
children. Three months after the children moved in with her, their mother
moved to Vermont. Mother=s extremely violent
boyfriend, John Smith, followed shortly thereafter. Raymond was concerned that
Smith would flee with the children to get back at mother, and she obtained a
relief-from-abuse order on behalf of herself and the children ordering Smith to
stay away from them. With assistance from a battered women=s advocate, Raymond and
mother arranged for mother to move into a safe house with the children.
Raymond did not inform the advocate that there was a court order prohibiting
the children from staying with mother. Mother left the shelter shortly
thereafter and moved into a trailer with the children. Raymond was aware that
this occurred. Mother then reestablished contact with Smith. Concerned school
officials contacted police and DCF, and the children were taken into DCF
custody. Although Raymond initially engaged in visitation with the children,
she indicated in June 2004 that the visits were too difficult for her. In
September 2004, Raymond indicated through counsel that she would not contest
the termination of her legal rights concerning the children.

The court found that
these facts demonstrated that a substantial change in material circumstances
had occurred since the guardianship order was issued. The court explained that
the North Carolina order granting Raymond custody and guardianship required
supervised visitation with mother and the order prohibited the children from
staying overnight or residing with mother. Raymond was aware of these
requirements yet she allowed the children to move in with their mother.
Raymond stated that she was Anot surprised@ to learn that Smith was living with them as
well. The court also found that Raymond indicated she could no longer care for
the children.

The court rejected
Raymond=s proposal that she
remain guardian for the purpose of determining where the children would be
placed. The court found that such action was not contemplated by the North
Carolina order nor by Vermont law after a CHINS determination had been made,
and it was an inappropriate consideration for maintaining a guardianship. The
court stated that the decision regarding permanency and placement should be
made by a court, rather than an individual who was unable to care for the
children. The court explained that a forensic evaluation had been prepared to
evaluate the children=s best interests and, at
the hearing on the TPR petition, the court would have the opportunity to hear
all of the evidence and arguments as to the appropriate placement for the
children.

The court then reviewed
the factors set forth at 33 V.S.A. ' 5540 and made numerous findings in reaching its
conclusion that termination of Raymond=s guardianship was in the children=s best interests. The
court explained that the children would remain in DCF custody until the family
court determined the appropriate placement at the TPR hearing. Raymond
appealed.

On appeal, Raymond
argues that the family court erred in concluding that it, rather than she, had
the authority to determine where the children would be placed. Raymond asserts
that, as guardian, she was authorized to arrange for a suitable placement for
the children.

Raymond mischaracterizes
the family court=s opinion, and her legal
arguments are without merit. While Raymond may at one time have been
authorized to arrange a suitable placement for the children as their legal
guardian, she lost any such authority when legal custody of the children was
transferred to DCF. See 33 V.S.A. ' 5528(3)(A) (when child is adjudicated CHINS,
family court may transfer legal custody, or guardianship over the person, or
residual parental rights and responsibilities, to DCF); see also In re B.C., 169 Vt.
1, 13 (1999) (concluding grandparent=s assertion that she retained residual parental rights by
virtue of guardianship order subsequent to CHINS determination was Adoubtful, at best, considering
that 33 V.S.A. ' 5528(3) gives the family court the
authority to transfer guardianship of a child found to be in need of care of
supervision to [DCF] or any individual qualified to care for the child@). As we explained in In re S.P.,
173 Vt. 480, 482 (2001) (mem.) (citing 33 V.S.A. ' 5532(a)(2)), a guardianship order may be
set aside Aon the ground that
changed circumstances so require in the best interests of the child,@ and a CHINS
adjudication Ain and of itself
demonstrates a substantial change in material circumstancesCthe custodial guardian
is unable to protect and care for her ward, contrary to expectations when the
guardianship was conferred.@ As the children here were in DCF custody, it was DCF, not
Raymond, that was empowered to determine where the children would be placed,
subject to the family court=s acceptance or rejection of DCF=s recommendation. See In
re J.D., 165 Vt. 440, 444 (1996) (family court may reject DCF=s recommendation as to placement).

Even assuming that the
transfer of legal custody to DCF did not supercede the North Carolina
guardianship order, there is simply no support for Raymond=s assertion that the
family court erred in refusing to continue her guardianship for the sole
purpose of allowing her to determine where the children would be placed. This
is particularly so in light of Raymond=s failure to protect the children while they
were in her care. See In re S.P., 173 Vt. at 482 (AThe purpose of a
guardianship, as its name suggests, is to lawfully invest a person with the
authority and duty to protect and take care of another person.@). The family court=s conclusion that
complete termination of Raymond=s guardianship was in the children=s best interest is
well-supported by its findings, which are in turn supported by the evidence.
We find no error in the court=s decision. See Payrits v. Payrits, 171 Vt. 50,
52-53 (2000) (noting family court=s broad discretion in determining a child=s best interests and
rendering a custody determination).

Affirmed.

BY THE COURT:

_______________________________________

John A. Dooley,
Associate Justice

_______________________________________

Marilyn S. Skoglund,
Associate Justice

_______________________________________

Brian L. Burgess,
Associate Justice

* Parents either voluntarily
relinquished their residual parental rights or had their rights terminated by
the court in the underlying actions, and no parent has appealed.